Morgan v. Davis

4 La. 141 | La. | 1832

The facts are stated in the opinion of the court delivered by

Porter, J.

The insolvent, a considerable time previous to his failure, made an absolute bill of sale to the defendant, of two lots of gi-ound and a house erected thereon. The next day, by act sous seingprivé, it was agreed between the parties, that Reynolds might take the property back at any time within four years, on the condition that he paid a certain stipulated rent for the house and lots, the occupation of which he continued in, and that he returned the purchase money.

The creditorsofthevendor cannot make use of demption?fre Where a sale is Eittfickcd as simulated and with 6a view of defrauding creditors, the plaintiff must waTa creditor atthe time the conveyance was made. The syndics of an insolvent may brincad relate^toT the property ^cedo not repremattem'which rPer“nafe- McCaleb, for appellant. Hennen, for appellee.

From a paper produced in evidence, which was executed between the parties previous to the bill of sale being passed,

as well as from other evidence in the cause, we are satisfied, that when the absolute deed of sale was executed, it was the understanding of the parties, and made a part of their agreement, that the act sous seing privé, conferring on the vendor the right of redemption, should also be signed by them. It was therefore a vent ci réméré, and by the 2563d article of the Louisiana Code the creditors of the vendor cannot make use of this right of redemption.

If we consider the transaction in the only other point of view of which it is susceptible, namely, that it was simulated and entered into for the purpose of defrauding creditors, there *s e<luaRy as fatal an objection to the plaintifPs right of recovery. They do not show they were creditors at the time the conveyance was made.'

ft has been urged in this court that the syndic of the insolvent’s estate represents the insolvent, and can bring all actions in which he is personally interested. We do not know of any Jaw which confers such authority. Syndics, it is true, may . J bring actions in which the insolvent has an interest. Such are those which relate to the property ceded, for he is entitled to the overplus after his debts are paid. But they do not represent him for matters which are exclusively personal. They are not his legal assignees of a right of this description.

It is, therefore, ordered, adjudged, and decreed, that the judgement of the Parish Court be annulled, avoided, and reversed; and it is further ordered, adjudged, and decreed, that there be judgement for defendant, as in case of nonsuit, with costs in both courts.